Has the New Jersey supreme court just made same-sex marriage an electoral issue?

By Stanley Kurtz —
October 26, 2006

Yesterday the New Jersey supreme court ruled in favor of same-sex marriage, or its equivalent, just without the name “marriage.” It is not entirely clear what will happen next, but here is a preliminary evaluation of the situation. There are three possible outcomes in New Jersey: 1) the legislature will legalize full-fledged gay marriage; 2) the legislature will authorize Vermont-style civil unions that are marriage in all but name; or 3) the legislature will reject the state supreme court’s decision entirely, either by directly defying it, or by authorizing a constitutional amendment defining marriage as the union of a man and a woman.

At the moment, it looks like the second possibility — Vermont-style civil unions — is the most likely. The governor and the leading Democrats (who control the legislature) have already authorized domestic partnerships, while also saying they believe marriage is the union of a man and a woman. And since yesterday’s court decision, the Democratic legislative leaders have said and/or implied that civil unions would be the most likely outcome.

If civil unions are the most likely outcome, they are certainly not the only possible outcome. New Jersey’s Democratic leaders are not about to say, less than two weeks before the election, that they will approve full-fledged same-sex marriage. These politicians understand perfectly well that such a promise could provoke a Republican electoral revolt in New Jersey, and in the nation as a whole.

When the election is over, however, all bets are off. Gay-rights groups and sympathetic New Jersey legislators have already announced that they will be making a major push for the legislature to approve formal same-sex marriage. There are already a number of co-sponsors for the bill, and a pro-same-sex marriage coalition has even purchased ad time. New Jersey’s legislature has 180 days to make its decision, and there is going to be huge national scrutiny on this. Although the analogy is a mistaken one, many liberals see the marriage issue as strictly a question of civil rights. So when push comes to shove on the big vote, with the whole country watching, many liberal New Jersey legislators may be willing to take a political risk and vote for full-fledged marriage.

There is also some question as to how much of a political risk approving full same-sex marriage would actually be. Right now, slightly more New Jersey voters say they approve of same-sex marriage than oppose it. That could easily change, but public opinion is sufficiently divided that Democratic legislators, facing what they see as a matter of civil rights, aware of the historical weight of their actions, and feeling the pressure of national scrutiny, could certainly decide to vote for formal same-sex marriage. Is this the most likely of the three outcomes? No. Is it a possible outcome? Yes.

If the legislature approves formal same-sex marriage, the implications would be huge. It is not just a matter of one more Massachusetts. Massachusetts has a law that forbids the marriage of couples whose marriages would be illegal in their home states; New Jersey has no such law. So if New Jersey were to legalize full-fledged gay marriage, it would immediately become a Mecca for gay couples from across the nation, who would visit, marry, return to their home states, and launch a series of law suits that could eventually turn the gay marriage issue into a national crisis, thus forcing a decision by the U. S. Supreme Court. Again, this is not the most likely of the three outcomes, but it remains a possible one.

The New Jersey legislature is not up for election this year, but will be in 2007, six months after it has decided what to do about gay marriage. So the last election that will send a message to New Jersey state legislators before they make their decision is the U.S. Senate contest between Democratic Senator Robert Menendez and Republican Thomas Kean. Menendez leads that race by about four percentage points. But what will happen now? Kean has condemned the court decision and pledged to back a marriage amendment. Menendez has not yet commented, but has in the past opposed the idea of a federal marriage amendment.

If Menendez wins by four points or more, that sends the message that New Jersey’s gay marriage decision had no harmful political effect on the Democrats. And that will tend to free New Jersey state legislators to risk approving full-fledged same-sex marriage. If, on the other hand, Kean defeats Menendez, that will be read as a message from New Jersey voters rejecting the court decision. Victory for Kean would maximize the chances that New Jersey’s state legislature would approve “only” civil unions. And a big Kean upset might even push Democratic legislators, fearing for their seats in 2007, to join with Republicans to approve a state constitutional amendment defining marriage as the union of a man and a woman. So a great deal hangs on the outcome of the Kean-Menendez battle.

Although there are many more complicating factors at the national level, the same political calculus does apply (or will be applied) nationally, though certainly to a lesser degree. If, in the wake of the New Jersey decision, the Democrats take over both the House and the Senate, it will be said that the gay marriage issue has lost its power to motivate voters. That in turn will embolden state judges to follow New Jersey’s lead, and will make a Democratic congress far less likely to pass a federal marriage amendment in the event that New Jersey or some other state provokes a crisis by legalizing gay marriage, thus becoming a national gay “Las Vegas” some time in the next two years.

If, on the other hand, the Republicans come back at this late date and narrowly retain both houses of Congress, it will be said that the New Jersey decision helped to energize the voters. That will tend to keep activist judges bottled up, and will lay the political groundwork for a federal marriage amendment, if and when gay marriage spreads to more states.